R. v. Kozarovsky Date:, 2012 BCPC 444

Citation: R. v. Kozarovsky Date: 20121102 2012 BCPC 0444 File No: 56990-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YURIY TARASOVYCH KOZAROVSKY EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC

Counsel for the Crown: G. Oh Counsel for the Defendant: V. Michaels Place of Hearing: North Vancouver , B.C. Date of Judgment: November 2, 2012 [ 1 ] THE COURT: Yuriy Tarasovych Kozarovsky has pled guilty today to one count of simple assault arising April 12th, 2011, at Whistler, British Columbia. He and the complainant were acquaintances in Whistler. She had a home business and he was working as a massage therapist. He is not a registered massage therapist in British Columbia.

In any event, they had made an arrangement where she would provide services to him in exchange for massage. [ 2 ] On April 12th, he came to her home and provided her with a massage. There was nothing unusual or untoward about the massage until towards the end when Mr. Kozarovsky began doing a stomach massage. At that time, his hand moved over her genital area with some pressure. The massage ended. The complainant in this matter brought this to his attention. She was disturbed by what had happened and eventually disclosed this matter to the police. [ 3 ] Mr. Kozarovsky is 50 years old.

He immigrated to Canada from the Ukraine approximately 15 years ago with his wife and child. In the Ukraine, he had trained and was practicing as a psychiatrist and addictions treatment doctor. He was working in intolerable conditions and had to leave, I am told in part because of his opposition to the continued use of electroshock treatment. [ 4 ] In any event, he and his wife and child came to Canada. They knew no one. They did not speak English. His wife had been a teacher. They have made a life in Canada in the Whistler area.

He had trained as a massage therapist in the Ukraine before leaving because he was aware that he would not be permitted to practice medicine when he came to Canada. He then developed a massage business in the Whistler area. [ 5 ] His wife is working at what has been described as entry-level jobs. Mr. Kozarovsky has also been working doing maintenance at a local arena as well as some labour at the recycling depot. Their son, who is now 25, is back in the Ukraine studying medicine as had his father. [ 6 ] Mr. Kozarovsky has not been able to work as a massage practitioner since.

It would appear that during the course of the investigation and as a result of these allegations having been made in a fairly small town, as far as permanent residents there, these incidents became well known in the community. In the course of the police investigation, his previous employers, if they were not already aware of it, became aware of it. [ 7 ] In any event, he has been now on Employment Insurance for the last six months. His future plans are to retrain potentially as a nurse or to actually obtain his qualifications as a registered massage therapist. Mr.

Kozarovsky has no criminal history in Canada and I infer from his position in the Ukraine, in the Ukraine, either. [ 8 ] The Registered Massage Therapist Regulating Body took out a large advertisement, in the local paper at Whistler ensuring that everyone knew that Mr. Kozarovsky was not a member of their association. Clearly he has suffered significant stigma and shame as a result of this charge. [ 9 ] Today, he has pled guilty only to a simple assault.

The Crown and his counsel take the position that there was no sexual purpose in his touching, but nevertheless that touching that area inadvertently or overstepping his bounds by touching Ms. C. in that area constituted an assault. I am told through counsel that prior to conducting a stomach massage, a massage therapist will generally set boundaries with the patient and Mr. Kozarovsky failed to do so with the complainant in this matter. [ 10 ] Both counsel take the position that a conditional discharge is, on behalf on Mr.

Kozarovsky, an appropriate disposition and, on behalf of the Crown, not one that they are opposed to in all the circumstances. Imposing a criminal conviction would prevent him from pursuing any occupation in the future in either nursing or massage therapy. I agree that in all of the circumstances a conditional discharge is not against the public interest and is certainly in Mr. Kozarovsky's interest. [ 11 ] So I will place him on a discharge.

The period of probation will be for 12 months. [ 12 ] The terms will be that he is to keep the peace and be of good behaviour. [ 13 ] He is to have no contact direct or indirect with C.C., and I am going to use her initials for the purposes of privacy. [ 14 ] THE COURT: Is there a publication ban? [ 15 ] MS. OH: Yes. [ 16 ] THE COURT: All right, but the order will simply read, "C.C." as opposed to her name.

So no contact direct or indirect with C.C. [ 17 ] You are not to attend any residence or place of employment at which you know C.C. to reside or work. [ 18 ] You are not to represent yourself as a registered massage therapist until such time as you are a registered massage therapist. You are not to apply for any employment as a massage therapist without providing your potential employer with a copy of these reasons for judgment.

[ 19 ] Is that acceptable, Mr. Michaels? [ 20 ] MR. MICHAELS: Yes. [ 21 ] THE COURT: I will order a copy of the reasons be prepared. [ 22 ] There are no other ancillary orders. There is a $50 victim fine surcharge. Do you wish me to waive that given that he is on Employment Insurance? [ 23 ] MR. MICHAELS: I will ask you to consider doing that. [ 24 ] THE COURT: I will waive the $50 victim fine surcharge. [REASONS FOR SENTENCE CONCLUDED]